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Michigan State Police urged to return DNA evidence

posted Sep 23, 2015, 12:50 PM by Resty Manapat

State law says biological
evidence collected from crime suspects is to be returned or destroyed after
acquittal. But samples stored by the Michigan State Police can be kept for
months after a case is resolved, unless a court intervenes.

That
has privacy experts in Michigan and nationwide worried about who’s accessing a
trove of samples that contain DNA and one local attorney arguing a recent law
intended to protect civil rights doesn’t go far enough.

The
dispute is fueled by growing concerns about government’s reach into
individuals’ lives, and concern that collections of personal information may be
mined by federal officials or businesses for purposes other than what was
intended.

Southfield
lawyer Neil Rockind believes police don’t have the right to keep biological
property and say they should give it to the people from whom samples were
taken, free, as soon as possible.

“We’re
starting to see a scaling back of individual rights because the police have
such great power and are overreaching,” said Rockind, a former assistant
Oakland County prosecutor who runs a Southfield-based firm. “The state of
science today is nothing compared to what it will be in two or five years.”

Rockind
recently was involved in a legal battle to have authorities return the blood
sample of a client who was ticketed, but acquitted, of drunken driving. He said
the Michigan State Police told him his client’s blood samples belonged to the
police agency that drew the blood.

An
Oakland County judge disagreed: Rockind successfully petitioned 48th District
Judge Marc Barron in Bloomfield Township to order the State Police to release
the blood sample. It did.

“The
worry is that they have someone’s DNA and health profile,” Rockind said. “What
if the lab mixes up the blood sample? I don’t like the state having that much
of a person’s biological property. There is no reason to keep it if the person
is acquitted. It should be returned (to the individual).”

Michigan
State Police spokeswoman Tiffany Brown said biological samples are destroyed
two years after they were collected, but can be kept longer if, for example,
prosecutors’ offices request it. Brown said state police will destroy a blood
sample promptly before the two-year period, if there is a court order to do so.

“We
retain blood samples for two years because of the potential for retesting
and/or additional testing, if ordered by the courts,” Brown said. “The two-year
time period provides sufficient time for a case to make it through
adjudication.”

The
costs of storing the samples are minimal, according to State Police officials.

Samples
are not returned to individuals without a court order because they would
present a “bio-hazard,” Michigan State University forensics specialist David
Foran said. Such a practice could jeopardize public safety if people were to
walk around with vials of blood, urine or other body fluids, he pointed out.

“DNA
testing is done pretty much on anyone who is arrested,” Foran said. “It would
be completely against the law” to test body fluids for any other reasons than
what was given originally by police, he added.

Foran
said samples can be destroyed using bleach or subjecting them to superheated
steam under pressure.

The
Oakland County prosecutor’s office says the use and collection of DNA has
benefits for the victim and for a person accused of crime.

“DNA
collection is not just for conviction,” said Paul Walton, the spokesman for
Oakland County Prosecutor Jessica Cooper. “We use it to exonerate (individuals)
all of the time.”

Shelli
Weisberg, the legislative director for the Michigan American Civil Liberties
Union, says her organization has been working on the issue of “biological
property.”

“DNA
tells a person’s life story,” Weisberg said. The ACLU was behind efforts to get
a provision in the law to make sure a person’s DNA is destroyed automatically,
once the individual is cleared of a crime.

Senate
Bill 105 expanded the list of violent crimes under which police agencies can
collect DNA. The law allows samples to be taken from a person at the time of
arrest for committing or attempting to commit a felony. But Weisberg said those
samples, under Public Act 457 of 2014, which went into effect in July, have to
be destroyed after a person is cleared of the crime. The DNA samples are sent
out for testing once the person is arraigned.

Under
the new law “the individual’s DNA sample or DNA profile, or both, shall be
destroyed or expunged, as appropriate, if the charge for which the sample was
obtained has been dismissed or resulted in acquittal, or no charge was filed
within the limitations period.”

The law
also states that once it has been determined the information from the DNA is no
longer needed for a criminal investigation or prosecution, the Michigan State
forensic laboratory “shall dispose of a sample and a DNA identification profile
record in the following manner … not more than 60 days after the department
receives notice … ” of a request for disposal of the DNA sample from the
investigating police agency.

There
is no penalty if MSP keeps the samples for the two-year period that their
policy allows, so long as no one has requested their destruction. MSP or other
police agencies could be found in contempt of court if they keep the samples
after being ordered by a judge to destroy them.

Weisberg
said it was important to make sure the new law included some protection for
individual privacy.

“There
is no doubt law enforcement and the FBI have been wanting to build a (national)
database of DNA samples,” she said. “With these databases, they can get
abused.”

The
information from DNA can be misused by law enforcement and insurance companies,
Weisberg said. She added another concern is whether insurance companies would
be able to deny policies or base premiums based on information gleaned from a
DNA analysis.

Law
enforcement organizations such as the Michigan Association of Chiefs of Police
say DNA collection is an excellent crime-solving tool, but the organization
supports the state law and the provision mandating destruction of DNA when a
person is cleared of a crime.

Robert
Stevenson, the executive director of the organization, said the problem with
the new law is how to carry it out.

“It
could be a logistical problem for larger (police) agencies,” he said. “It might
be a problem if some of our larger agencies don’t get updated right away on the
status of a case.”

Attorney
Mike Nichols, a member of several legal organizations including the DUI Defense
Lawyers of America and the Michigan Association of OWI Attorneys, said Rockind
is on the right track.

“If it
(the sample) has lost its evidentiary value, I want my client’s biological
property back,” said Nichols, whose practice is based in East Lansing. “I don’t
think you need to worry if it’s seized pursuant to a search warrant. It’s
always a person’s property. It’s their blood.”

Rockind
said the better thing to do is to give it back and let the individual decide
what to do with it.

“You
took it from me. It’s mine. It came from my body,” he said. “I’ll do with it
what I want to do with it.”

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